The off payroll working (OPW) (sometimes referred to as IR35) rules which currently apply where services are provided by contractors via (for the most part) personal service companies to clients in the public sector will be extended with adaptations to the private sector from April 2021.
The object of the rules is to ensure that PAYE is accounted for where a contractor would have been an employee of the client but for the fact that the contract with the client is with the contractor’s personal service company rather the contractor personally.
This TAXguide contains answers to the questions submitted by delegates at a TAX Faculty webinar on off-payroll working broadcast on 23 November 2020.
The webinar was hosted by Steve Wade, Associate Partner in EY’s People Advisory Services, and Kate Upcraft of Kate Upcraft Consultancy Ltd, specialist payroll and employment consultants.
They provided practical advice on the tax legislation mainly in Chapter 10 ITEPA 2003 as amended by Schedule 1 to Finance Act 2020 and NIC legislation amended by The Social Security Contributions (Intermediaries) (Miscellaneous Amendments) Regulations 2020 (SI 2020 no.1220) and HMRC’s latest guidance mainly in Employment Status Manual ESM10000 most recently updated on 12 November 2020.
ICAEW Tax Faculty members can watch the webinar again.
This TAXguide was updated on 4 January 2021 to incorporate references to TAXguide 22/20 Accounting for off-payroll working published on 29 December 2020.
Edited by Peter Bickley BFP FCA CTA, Technical Manager, ICAEW Tax Faculty
|TAXguides are published by the Tax Faculty to provide practical guidance to individuals, businesses and tax practitioners on important developments in tax practice and policy.|
Size of clients (or engagers) – ascertaining
Q1 The definition of small company is set out in ss381-384 Companies Act 2006 which include the size criteria but also details of companies excluded from being small. I understand that these exclusions apply to IR35 - am I correct?
Yes, you are correct. HMRC’s guidance ESM10006 confirms this stating:
‘Companies excluded from the Small Companies Regime
‘Certain companies are excluded from the Small Companies Regime by section 384 Companies Act 2006, so they would not be considered small for the purposes of Chapter 10, Part 2 ITEPA 2003.’.
Brexit-related changes to UK company law comes into effect after the end of the transition period ie, after 31 December 2020. Where UK company law referred to the EEA or an EU regulated market, these references have been amended to refer to the UK only. For example, the old definition of an ineligible group is one that includes, inter alia, a company whose shares are traded on a regulated market in an EEA State. When the reference is changed to a company whose shares are traded on a regulated market in the UK (only), the definition of an ineligible group will be less restrictive, so more companies could, potentially, qualify as small. Most changes are effective for accounting periods beginning on or after 1 January 2021.
For more, please see ICAEW guidance Brexit - reflections on implications for financial reporting. We shall be refreshing our TAXguide 03/20 Are you a small private sector client? in the new year.
Q2 Is slide 8: How to determine size correct? Surely not small if satisfy 2 or 3 conditions?
Thank you very much for pointing this out. The second column of the slide should have the word ‘Not’ before ‘More’ in each line. We have corrected the slide pack.
Size of clients – ascertaining – groups and entities under common control
Q3 If a small company is part of a group, is it the group size that counts?
Q4 If engager is itself a small company, but is a subsidiary of a medium group, do the rules apply?
Q5 If the client is a small company in a medium size group does it still have to apply the rules or because it is small it does not?
Q6 If a 'small' UK company is part of an international group that is not small, what is the deemed size for new OPW regulations?
Yes, it is the group size that counts, and overseas entities are included too. S60C ITEPA 2003. As noted in HMRC’s guidance ESM10007:
‘Figures from all members of the group are included irrespective of whether group members are resident in the UK or not, so the worldwide group is considered. Please see ESM10006 for the qualifying criteria.
‘These group rules also apply to overseas companies, limited liability partnerships and unregistered companies who are part of a group.’.
Q7 Can you advise if a company's results need to be combined with other companies under common control (but are not grouped)?
Yes, the figures for companies under common control do need to be combined. S60G ITEPA 2003 and ESM10008.
A person can determine whether they are connected to another person by reference to the rules in s993 ITA 2007 (and see PTM027000).
Q8 You explained that creating a new subsidiary to engage with PSCs won't make that new subsidiary small if the group is not small, but if that newco was outside the group, eg, owned by one or more directors directly, would that be effective?
This situation would have to be tested against the connected persons rules, eg, the extent to which the director of newco is connected with the group, which would depend on who controls one or more companies in the group and newco, and whether there is substantial financial interdependence between the group and newco. See previous question and PTM027000
Size of clients – ascertaining – media industry
Q9 Please could Kate comment on the treatment differences if any in the Film and TV industry where large companies make films in separate production companies that may not be large...Is this a defence from "taxing" the PSC entities providing a series of crew and cast services...? For multiple production.
The short answer is that this would not be a defence. Usually a special purpose vehicle (SPV) is set up for each production and this would be part of the wider group. There are variations on this, for example, joint ventures (JV) or ‘partnerships’ do sometimes occur, where the controls over the SPV (both financial and in terms of intellectual property) are contractual. These are generally between independent production companies, but the OPW rules for determining ‘small’ treat JVs as if they were a group of which the JV target is the parent company. See EIM10009 et seq.
Small clients (or engagers) – information obligations
Q10 How does the PSC know whether the engager is small or not?
Q11 Do small companies need to give their subcontractors a notice before the start of the tax year, that they are exempt from applying OPW? I read in a recent briefing that they had to give a notice. If so what form does the notice take?
Q12 I read in (Tolley?) brief last week that if you are small and don’t have to apply the rules, you MUST NOTIFY your subcontractors before the start of the tax year that you are small and that OPW does not apply.
If a contractor or the person a client contracts with is uncertain about the size of its client for a particular engagement, it can formally ask the client to confirm its size. The request should make it clear to the client that the request for it to confirm its size is being made under the off-payroll working rules in Chapters 8 and 10, Part 2 ITEPA 2003 and which tax year the request relates to.
The client has 45 days from the date of receiving the request to confirm its size. The end of the 45 days is the later of the end of the period of 45 days beginning with the date the client receives the request, or 45 days prior to the start of the tax year specified in the request.
If the client confirms that they are small and so the engagement is not within the scope of Chapter 10, Part 2 ITEPA 2003, the contractor must consider Chapter 8, Part 2 ITEPA 2003.
If the client does not respond confirming its size within 45 days of receipt, the requestor can apply to the courts for an injunction (or an order for specific performance in Scotland), requiring the client to provide the information which will come with consequences if not adhered to.
Q13 Do IR35 rules still apply to PSC if the client is wholly overseas?
Q14 Slide 25 client wholly overseas. You said that new guidance was issued clarifying the position re no UK connection. Has there been any change to the legislation since FA2017, or any further guidance or clarification from HMRC?
‘Where a medium or large-sized non-public sector client is based wholly overseas, so there is no UK connection immediately before the beginning of the tax year because it is not UK resident and does not have a UK permanent establishment, then the rules at Chapter 10, Part 2 ITEPA 2003 do not apply (see ESM10006). The worker’s intermediary should consider whether Chapter 8, Part 2 ITEPA 2003 applies for these engagements.
‘For more information on whether a company is UK resident see INTM120000.’.
The original legislation in HMRC’s view applied even when the client was overseas. The ICAEW disagreed with this view and challenged HMRC’s position. The latest legislation now specifically states that the client has to have a UK connection (s61K ITEPA 2003). A UK connection is in turn defined in s60I ITEPA 2003 which states that:
1. ‘For the purposes of this Chapter, a person has a UK connection for a tax year if (and only if) immediately before the beginning of that tax year the person—
- is resident in the United Kingdom, or
- has a permanent establishment in the United Kingdom.
2. ‘In this section “permanent establishment”—
- in relation to a company, is to be read (by virtue of section 1007A of ITA 2007) in accordance with Chapter 2 of Part 24 of CTA 2010, and
- in relation to any other person, is to be read in accordance with that Chapter but as if references in that Chapter to a company were references to that person.’.
SDS – information requirements
Q16 Does the contractor have an obligation to ask for an SDS and if not, what are the consequences if one should have been issued but was not?
‘If the client does not issue a SDS, the worker can ask why. Under the off-payroll working rules a worker has the right to request confirmation of a client’s size (see ESM10011A). If the reason for not issuing a SDS is because it is a small non-public sector client, the worker’s intermediary should determine whether the off-payroll working rules apply, as per the rules in Chapter 8, Part 2 ITEPA 2003. If the client is not a small, non-public sector client, then any potential liability for tax, NICs and apprenticeship levy under the off-payroll working rules would rest with them as they have not issued a SDS.’.
Determining employment status – HMRC’s check employment status tool (CEST)
However, HMRC has said that it does stand by determinations arrived at by CEST, provided that the details input ‘are accurate and in line with HMRC guidance’. See ESM10013.
Q19 Devon County Council (DCC) says CEST is not adequate and uses their own tool - but their tool is not available, and the answers or input cannot be checked. Is this normal?
A contractor who disagrees with an SDS provided by their PSC’s client can register a disagreement with the client before the final fee payment is made under the contract, in response to which the client must respond within 45 days and provide reasons for its reconsidered decision (s61T ITEPA 2003, ESM10015).
Q20 Does the CEST tool take into account non-UK based factors of the contractor?
Status determinations – reasonable care etc
Status determinations – appeals (disagreements)
If the contractor disagrees with a reconsidered determination reached by the client, they could submit further a notice of disagreement, if time limits permit.
Ultimately, if the contractor still disagrees with the SDS by the time they complete their SA return, the contractor would need to enter the deemed employment income as £nil and the PAYE income tax withheld on an employment page of their SA return and note in the white space that that employment income has been incorrectly subjected to PAYE, and make a separate claim to HMRC to recover Class 1 NIC deducted. In this event, payments from the PSC to the contractor in respect of this fee income should be treated in the tax returns of the PSC and the contractor as subject to tax and, if appropriate, NIC.
In extreme cases the contractor could try and sue the client for full payment but this is not really a practical approach.
Q23 Can a contractor reject an SDS issued now on the basis that rules have not yet come into effect?
Q24 Where an appeal is made by email, when does the 45 day period start? Can employer determine eg, from when received in a specific mailbox?
The contractor (or worker) as deemed employee – employment rights
Q26 Would one challenge why Box C is not ticked?
Given that a contractor working through their own PSC will have another job, comprising their employment with their PSC, and the starter checklist is a declaration of personal circumstances by the contractor, it would be reasonable for a deemed employer to challenge the absence of a tick in Box C. See ESM10019.
Q27 How can VAT be part of gross pay? Surely it is reclaimed?
VAT is not included in the amount on which PAYE is calculated, see ESM10028.
Q28 Regarding taxable benefits included on the invoice such as a claim for travel to work, how would that be included in the payroll? As salary or as another category?
Taxable benefits-in-kind (BiK) and claims for travelling are treated in the same way as for an actual employee. If, unusually, the client has agreed to pay home to work travelling expenses which are non-deductible, they would have to be grossed up through the payroll. If the client provides a contractor with BiK, we believe that a taxed awards scheme would need to be set up, like for the provision of BiK to any third-party employee whose employer (in this case the PSC) is not involved in the provision.
Status determination overturned
Q29 If there is a challenge which is allowed, is anything done about deductions which have already been made?
The procedure for the deemed employer is the same as for an actual employer, ie, rectify in the payroll as follows:
- for the current tax year, in the next full payment submission (FPS) set the year-to-date (YTD) values to zero and insert a leaving date that is the same as the start date, and
- for previous tax year(s), as above but in corrective FPS(s) for the complete year(s).
Q30 How does the use of an umbrella company improve the tax position of PSCs?
An umbrella company can be used instead of a PSC so the contractor becomes an employee of the umbrella company and PAYE is operated by the umbrella and all employment rights exist for the contractor with the umbrella. This can reduce administration for the contractor.
We would warn that some umbrella companies claim to offer more than others, and whilst there are variations between the promises they make, some of them may be too good to be true.
Common tactics by less scrupulous umbrella companies include:
- Deducting employer NIC from the contractor’s pay as well as employee NIC without the impact on the day rate being made clear at the outset;
- Promises of a higher take-home pay than can be achieved by legitimate means – often this is achieved by paying contractors something that is not called salary, eg, a loan, which might fall foul of the disguised remuneration rules;
- Claims that they have found a ‘loophole’;
- Advertising their strategies as ‘HMRC approved’;
- Advertising their fees minus higher rate tax relief;
- Deceptively low fees initially which are ramped up later on.
It is important to check the credentials of any umbrella company before a contractor enters into an agreement with it. If PAYE tax and NIC is not accounted for to HMRC, HMRC will pursue any outstanding amount owed, so contractors should choose carefully to ensure that they are not putting themselves at risk.
Q31 Am I correct in thinking that if a PSC director is caught as a deemed employee that they still have to keep their PSC to run the transactions through? Or can they close the company and simply be a deemed employee? Is there any benefit of keeping the company if the only contract is caught by the new rules?
There has to be an intermediary for the new rules to apply. If the PSC is shut down, the client might not engage with the contractor.
If a director of a PSC is a deemed employee, either under the traditional IR35 rules or the newer off-payroll rules, we would recommend not closing down the PSC until all the fee payments made by the client have been processed and/or a new contract is negotiated to which the PSC is not a party, otherwise the chain down which the money passes to the contractor will have been broken. If the PSC has received fees from the fee payer and is closed down to get the money out, there may be liabilities to corporation tax or capital gains tax that need to be met because it is the PSC that has been paid, not the contractor. If the contractor is working directly for their client, eg, not via a PSC or an agency, then the question of employment status is for the client to determine, and if the client determines that the contractor is an employee, then it should put the contractor onto its payroll.
See answer to next question concerning other employment rights aspects.
If a PSC’s only contract is caught by the new rules, care will need to be taken to ensure that the expenses of running the PSC (eg, accountancy, company secretarial fees, etc) plus sums onward paid to the contractor representing the fee income from deemed employments are not greater than the fee income, which could render the PSC insolvent.
For more details, please see TAXguide 22/20 Accounting for off-payroll working.
Q32 If a company is caught under these rules, and has income of say £200k with no other source of income, generally speaking, is it still worthwhile continuing with the PSC or should it be dissolved and he becomes a permanent employee (with all the employee benefits that may arise!)?
This is a not unreasonable option. However, it may not be within the gift of the contractor as the client may not want to offer an actual employment contract given the on-costs of employment rights. The client will probably want to revise the fee to compensate for that. Also, the contractor if an actual employee will sit within the client’s employee salary bands, and the client will want to ensure that the contractor’s salary is on a par with other equivalent employees to ensure that an equal pay issue does not arise.
Q33 Based on the rules mentioned for Off-Payroll working, is it possible for 2-3 contractors to come together and form a limited company ... all shareholders and all directors, and profits split in accordance to shareholding or rights of shares issued?
Yes, contractors can cluster together in a limited company. If there are no shareholders etc other than the 2-3 contractors, the off-payroll rules will still apply in the same way as if the contractors worked via their individual PSCs because they would have a material interest (>5%) in the limited company.
A provision in FA 2020 which amends s61O(1)(b) ITEPA 2003 from April 2020 is aimed at preventing contractors clustering together through an intermediary without any one of them holding a material interest so that the off-payroll rules would not then apply to their services. As this amendment could bring umbrella companies within the rules, which was not intended, HMRC is considering how to rectify the provision to meet its original purpose without unintended side effects.
Note that HMRC has made it clear that they will counter any attempts to avoid these new rules.
PSC – financial statements
Q34 Could you provide a worked example (with numbers) of how the entries are accounted for in the PSC accounting records.
Q35 Can you do a worked example of how the accounts will look for the PSC and how the income will be disclosed on the director’s income tax return?
Q36 How would you gross up the payment in your accounts?
As noted in our webinar Q+A TAXguide 16/19, in very brief terms, the PSC accounts show gross fees as turnover, and the PAYE deductions from those fees are included in expenses under staff costs or similar. Expenses reimbursed are normally netted off against expenses incurred. PSCs that are VAT registered account for VAT in their VAT control account.
The deemed employment income received by the PSC can be paid out tax-free to the contractor either as salary (which needs to be reported via RTI in Box 58A as tax and NIC free) or as a dividend. In the PSC’s CT computation, the fees from off-payroll working should be shown as non-taxable and the onward payments as non-deductible. If the fees onward paid are not taken as payroll payments but instead are taken as dividends, CT relief is given under section 141A Corporation Tax Act 2009.
The worker’s SA tax return should include the deemed employment income paid by the fee payer to the PSC as employment income from the fee payer – ie, on an employment page separate from any taxable employment income from the PSC or other employers or fee payers.
See also HMRC’s guidance Public sector off payroll working for intermediaries and ESM9080 Accounting for the deemed payment ESM10035 Basic principles: CT accounting and ESM9085 & ESM10030 How the worker accounts for and reports monies drawn from their intermediary.
PSC – corporation tax (CT) computation
Q37 How does a deemed payment affect profit/corporation tax calculation?
The fees received as deemed employment income and onward payments by the PSC to the contractor attributable to this income are treated as tax nothings for the PSC, ie, the fee income is not liable to CT and the onward payments are not deductible for CT. If the fees onward paid are not taken as payroll payments but instead taken as dividends, CT relief is given under section 141A Corporation Tax Act 2009.
See also HMRC’s guidance Public sector off payroll working for intermediaries, ESM9080 Accounting for the deemed payment and ESM10035 Basic principles: CT accounting.
PSC – onward payments to contractor/director
Q38 What is the double entry/tax implications in the limited company? Does the contractor need to take salary to avoid up to the amount of the deemed payment (rather than divis) to avoid a tax liability in the company?
Q39 Do you not HAVE to report the amount received as a deemed employee as salary on the FPS of the PSC? You can extract that amount via a dividend without the PSC reporting it on an FPS at all?
The PSC can onward pay amounts attributable to deemed employment income as salary or dividends, as it wishes; both are tax nothings in the hands of the PSC (and if fees from deemed employments are onward paid as dividends, relief is given under section 141A Corporation Tax Act 2009) and when received by the contractor.
See also answer to next question.
Q40 Would it not always be sensible for the PSC always to run the IR35 caught pay through its own payroll?
As the fees in respect of deemed employments and onward payment of such fees are tax nothings in the PSC, it makes no difference to the tax position of the PSC or the contractor if the fees are onward paid by way of salary or dividend.
The PSC can make employer pension contributions which qualify for CT relief. However, as noted above, if the only income of the PSC is from deemed employment income fees, care will need to be taken to ensure that total amounts paid out by way of PSC running expenses plus onward paid fee income do not exceed the fee income receivable.
If the pension contributions are employee contributions paid out of fee income onward paid as salary, then, as there is no PAYE income tax due on such payments, tax relief can only be given at source (ie, in the pension scheme) rather than by way of a net pay arrangement (ie, via payroll). HMRC’s guidance on pension contributions is at ESM10033.
In respect of NIC, there is no need to take any salary as there would have been historically to create a qualifying NIC year for state pension and contributory social security benefit purposes as the deemed employment will do that and will be shown as such in the contractor’s NIC contributions record.
Student loan repayments for contractors who are deemed employees is collectable via self assessment based on total income (neither the fee payer nor the PSC account for student loan repayments on deemed employment income).
Finally, if statutory payments (SP) are in point, then present indications are that both the gross amounts of deemed employment payments by the fee payer to the PSC and the amounts and timing of fee income onward paid and reported to HMRC in PAYE RTI full payment submission Box 58A (subject to neither tax nor NIC) will need to be taken into account.
Discussions with HMRC as to how statutory payments should be determined are ongoing. HMRC’s provisional guidance on statutory payments, which states that it is subject to future updates, is at ESM10033A.
Q41 Are there specific engagement letters for practitioners undertaking off-payroll work and also for existing IR35 rules that will continue after April 2021?
Off-payroll working/IR35 is included in ICAEW’s engagement letters guidance, available to ICAEW members.
Q42 We are a small firm of management consultants with permanent employees. Several clients want to deduct PAYE and NIC from our invoices. Surely this is not correct?
Q43 So if a client uses team from, eg, EY, they can be deemed to employees of the client?
The answer to this question depends on factors including:
- the way in which the services are or will be provided, see ESM9001 or ESM10001 and ESM10001A respectively depending on whether or not the services are being provided now or will be provided from April 2021 and paid for after that date, and
- whether the firm is or will be an ‘intermediary’ which receives a chain payment, see ESM9010 or ESM10003 respectively
- whether the firm is providing a worker or a contracted out service, see ESM10010 which contains examples.
If in doubt, we suggest that professional advice is sought so that all relevant facts can be taken into account.
Q44 Do the OPW regulations include payments to an EU based limited company owned by a foreign national?
Q45 We have a client where the director/shareholder was living and 100% resident in Switzerland and operated through a UK limited company. She won a contract with a UK company that insisted she would fall within IR35 and that deductions had to be made or she would have to use an umbrella company. In the end she did not take this contract. But it seems the engager was not aware how to apply the rules.
The answers to these questions depend on inter alia where the client and the intermediary/ies are resident, where the duties are carried out and the residence and domicile status of the contractor. See ESM10020, ESM100025 and HMRC’s guidance Tax on foreign income.
Q46 Regardless of IR35, should a company that qualifies as a small engager insist that it pays remuneration to its non-executive directors through payroll rather than through their PSCs?
Yes, because a non-executive director is an office holder and office holder fees must be paid via PAYE.
If consultancy services are provided in addition to the NED duties, employment status (deemed if provided via a PSC) for these should be considered separately.
Q47 This is an ICAEW webinar but, with no disrespect at all to the highly experienced and qualified speakers, is this the definitive guidance from ICAEW at this time, this date, please?
As normal, in this webinar we present the latest intelligence that we have based on the most recent versions of the law including prospective law, HMRC’s guidance, for example ESM10000 updated on 12.11.20, and discussions with HMRC. Discussions are continuing and we expect further guidance from HMRC and changes to s61O ITEPA 2003.
|Steve Wade is Associate Partner in People Advisory Services at EY. He has over 30 years’ experience of all aspects of employment taxes and NIC and specialises in advising multinational companies and their employees on the employment and personal tax implications of international assignments. Steve is Chairman of ICAEW Tax Faculty’s Employment Taxes and NIC Committee and represents us on numerous HMRC consultation forums.|
|Kate Upcraft of Kate Upcraft Consultancy Ltd, winner of the 2020 Accounting Excellence Outstanding Contribution Award, is a renowned lecturer, consultant and writer. Using her experience of managing one of the largest payrolls in the UK, she works on numerous payroll audits and projects across the private and public sector. Kate is Deputy Chairman of ICAEW Tax Faculty’s Employment Taxes and NIC Committee and represents us on numerous HMRC consultation forums.|